How Law Schools Behave Like States in International Relations Theory

Prepare to pay the price for reading a blog written by an international affairs graduate (with thanks to JETs with J.D.s for linking me to a post at Adam Smith, Esq. that briefly touches on the concepts).

The Stag Hunt kinda reminds me of the Unicorn Tapestries at the Cloisters in northwest Manhattan

If you studied international politics in college (and certainly beyond) and do not know realism kindly return your degree to its institution—you do not know IR. Realists are Thrasymachus unleashed upon the modern world. You can disagree with them, but you absolutely cannot ignore them. For those of you who legitimately claim ignorance of international politics, realism distills to, “Power matters.” Given its epistemology, it’s a positivist theory, so its adherents argue that power can be empirically quantified. Neorealists, particularly Kenneth Waltz, compare states in the international system to business firms in a free market. The free market is an anarchic structure in which firms prosper by behaving rationally in their own self interest: buying low, selling high, yada yada, &c.[i] Security is a zero-sum insubstantial commodity, entailing conflict. Realists are fond of comparing interstate interactions to the collective action problem and the stag hunt.

My forays into IR theory have taught me that while I refuse to ignore power, I think the question, “What causes a group or person to feel insecure?” takes us down more useful, albeit darker paths. In other words, I’m somewhat of a social constructivist.

What does this mean for our shared obsession, the law school tuition bubble? Perhaps our realist friends can help us understand law schools’ behavior.

Let’s test the following assumptions:

Can we consider law schools rational actors? Depends. I think most law schools are subject to parent universities’ wills. Whether college presidents are tying law schools’ hands behind their backs and forcing them to binge on debt-money isn’t really important so long as their behavior resembles rational unitary action.

Do law schools exist in an anarchic system? This is a tougher one to pull. Obviously state courts have the ultimate say as to who gets to be a lawyer, and some allow state-accredited law schools to participate. The ABA definitely does its job as delegated by the Department of Education (it might not be doing it well, but…). U.S. News rankings both describe and influence perceptions of law schools too. It’s messy, and law schools clearly can’t do whatever they want, like funding armies, but their operations aren’t remarkably limited, so I’m going to say yes to anarchy.

Forks on the left, knives on the right, the table is set. What do we observe fellow positivists?

Law schools raising tuition and expanding despite a super recession after an economic lost decade,

Law schools dog-piling over their U.S. News rankings (e.g. sending out “law school porn”)

As the Adam Smith, Esq. link above pointed out, we’re observing a straight-up arms race. Now for the constructivist question: Why are law schools insecure? As I see it, we have two things in scarce supply. Either they’re fighting over biglaw jobs and prestigious clerkships, or they’re fighting to employ anyone at all. Perhaps the former was the case before the housing bubble burst, while the latter represents the recession and the foreseeable future. The best analogy would be to business firms in waste management. Everyone wants their waste dumped in the NIMBYest place, yet as space disappears, the firms charge higher prices by improving their disposal methods.

Did I just compare legal education to dumping toxic waste on Bambi’s habitat? People, it’s the best example!

"I expected this kind of filth at Third Tier Reality but not here at the Law School Tuition Bubble!"

Unlike the empirical issues plaguing our IR theorists, though, legal jobs are readily quantifiable in all the ways security is not. Realist and Constructivist can walk together hand in hand. Utopia. Dystopically, though, unlike international security (a phenomenon that need not be zero-sum, barring obvious calamities such as overpopulation or ecological disaster), there is no win-win for law schools in the medium term. Every layoff, every hiring freeze, every eliminated government position, all shrink the positions law schools contend for. Recycling recent law grads into legal academia is cannibalism because they’re not producing a net economic benefit.

(Again with the waste disposal!)

I prefer the term "self-catering".

The fact that many law schools’ tuition rates have exceeded their graduates’ starting salary breakeven points demonstrates the bubble’s risk. Yet the good IR student asks, “Why not go the liberal internationalist route?” Yes, my inner IR liberal concurs. Escaping the collective action problem merely requires creating an institution that compels compliance, like an arms reduction treaty.[ii] The good news is that such an institution exists: the American Bar Association. Oh. I just read your mind loud and clear on that one.

Law schools, via their administrators, must realize if the ABA institutes a mandatory law student cap, their staffs will be slashed, and they may have to merge with nearby schools. Consolidation means faculty will be discharged. Maybe the neorealists are right: just as the state’s greatest fear is its own destruction, a law school’s survival is similarly nonnegotiable. Here’s what gets me: The most prestigious law schools have no reason to view the bubble as a threat, for they believe in their invulnerability. The schools most threatened by the bubble, those selling nonperforming JDs, aren’t going to admit they’re nonperforming. So why aren’t schools in between demanding reform? These are schools that’re performing but maybe not for long. They have every reason to preserve themselves. My fear is that it’s too late.

[i] Editorial: I’ve always been dissatisfied with Waltz’ comparison because the state manages the free market by enforcing contracts, providing security, and maintaining infrastructure. The other serious problem I have with realism is that despite its emphasis on security, it utterly fails to explain human conflict. This is largely due to the fact that they were more concerned about preventing yet another interstate world war than the genocides of today. Nevertheless, I imagine Waltz, John Mearsheimer, Hans Morgenthau, Robert Jervis, Stephen Krasner and the rest sitting in their college dorms playing Risk instead of asking actual combatants and leaders why they fight.

[ii] Gratuitous editorial: Of course if you’re a libertarian you think institutions are intrinsically evil.